Modesto City and High School Districts (PERB 0566EA)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MODESTO 	TEACHERS 	ASSOCIATION,
Charging 	Party,
v.
MODESTO 	CITY AND 	HIGH 	SCHOOL
DISTRICTS,
Respondent.
Case Nos. 	S-CE-286
S-CE-287
Request 	for 	Reconsideration
PERB Decision No. 	566
PERB Decision No. 	566a
February 13, 	1987
Appearances; 	Kenneth W. 	Burt 	II 	for Modesto Teachers
Association; 	Breon, 	Galgani, 	Godino & O'Donnell by Daniel 	R.
Fritz 	for Modesto 	City and High 	School 	Districts.
Before Hesse, 	Chairperson; 	Burt and Craib, 	Members.
DECISION
The Modesto City and 	High 	School 	Districts 	(District) 	and
the Modesto 	Teachers 	Association 	(Association) 	each 	request
reconsideration of Decision No. 	566, 	issued by the Public
Employment 	Relations 	Board 	(PERB or Board) 	on April 	10, 	1986.
Having 	duly 	considered 	the 	requests 	for 	reconsideration, 	the
Board 	itself hereby denies 	those 	requests, 	based on 	the
following 	discussion.
In 	its 	Decision No. 	566, 	the Board 	found that 	the District
violated section 3543.5(a), 	(b), 	and 	(c) of the Educational
Employment 	Relations 	Act 	(EERA 	or 	Act)1 by 	implementing 	a
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein 	are 	to 	the 	Government 	Code.
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60-minute 	class 	cycle 	at 	its high 	schools 	for 	the 	school 	year
1979-80, 	thereby 	increasing the 	teacher workday. 	The Board
ordered 	the parties 	to 	negotiate 	this 	issue, 	and 	ordered 	the
affected 	teachers be made whole, 	with 	interest, 	for 	the
increase 	in 	the 	workday. 	The 	Board declined 	to order a 	return
to the status 	quo ante, 	because, 	in 	its view, 	such a 	return
would 	disrupt 	the 	education 	process.
Pursuant 	to 	PERB 	Regulation 	32410,2 the 	District 	requests
reconsideration 	of 	the 	remedy awarded by 	the 	Board. 	The
District 	states 	that 	it 	voluntarily 	returned 	to 	the 	status 	quo
ante 	at 	the beginning of 	the 	1980-81 	school 	year. 	In 	light of
this, 	the 	District 	requests 	that 	the 	Board 	clarify 	its 	Order 	to
reflect 	that 	any 	make-whole 	relief be 	limited 	to 	one 	school
year. 	Further, 	the 	District 	asserts 	that 	the 	interest 	award 	is
"inappropriate" 	and 	"unduly punitive" and, 	moreover, 	exacerbated
by extraordinary Board 	delay. 	For 	these 	reasons, 	the 	District
2PERB 	Regulations 	are 	codified 	at 	California
Administrative Code, 	title 	8, 	section 	31001 	et seq.
Regulation 	32410 	states, 	in pertinent part:
(a) 	Any party to a decision of 	the 	Board
itself may, 	because of extraordinary
circumstances, 	file a 	request 	to 	reconsider
the 	decision 	within 	20 days 	following 	the
date 	of 	service 	of 	the 	decision 	. . . 	The
grounds 	for 	requesting 	reconsideration 	are
limited 	to 	claims 	that 	the 	decision 	of 	the
Board 	itself 	contains 	prejudicial 	errors 	of
fact, 	or 	newly discovered evidence 	or 	law
which 	was 	not 	previously 	available 	and 	could
not 	have 	been 	discovered 	with 	the 	exercise
of 	reasonable 	diligence.
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asks 	that 	no 	interest be 	awarded, 	or 	at 	least 	that 	any 	interest
awarded 	should 	cease 	to 	run 	as 	of 	the 	date 	the 	District
returned 	to the 	status 	quo 	ante. 	The 	District 	also argues 	that
the 	Association 	failed 	to meet 	its 	burden 	of proof 	that 	the
lunch period 	change 	in 	fact 	increased 	the 	teacher workday, 	and,
therefore, 	asks 	that 	the 	Board modify 	its 	Order 	and 	dismiss 	the
portion 	of 	the 	complaint 	that 	alleged 	that 	the 	unilateral
change 	in 	student 	lunch 	period 	violated 	EERA 	section
3543.5(c). 	Finally, 	the 	District cites Modesto City School 	and
High 	School 	District 	(1984) 	PERB Decision No. 	414 and PERB
Order No. 	Ad-143 	for 	the 	proposition 	that because 	PERB
concluded 	in 	that 	case 	that 	Districtwide 	past practice
permitted unilateral 	changes 	in 	the 	teachers' 	duty-free 	lunch
period 	so 	long 	as 	the 	teachers 	received 	the 	minimum 	30-minute
duty-free 	lunch period 	guaranteed by 	the 	Education 	Code, 	PERB
should apply this 	finding 	in 	the 	instant 	case. 	If 	this 	were
done, 	then 	the 	District 	could 	not have 	implemented 	a 	unilateral
change.
The 	Association 	requests 	reconsideration 	of 	the 	Board's
holding 	that 	the 	Association 	waived 	its 	right 	to 	negotiate
school 	calendars. 	The Association 	requests 	oral 	argument,
and 	also 	asks 	for 	attorney 	fees 	and 	costs.
3 December 	19, 	1986, 	the 	parties 	were 	notified 	that 	the
Board 	denied 	this 	request 	for 	oral 	argument.
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DISCUSSION
1. 	Return 	to 	the 	Status 	Quo Ante
We 	agree 	that 	a 	return 	to 	the 	status 	quo ante 	tolls 	an
employer's back pay liability. 	All 	we have before us, 	however,
is 	the 	District's 	assertion 	that 	it 	returned 	to 	the 	status 	quo
ante. 	In 	Pittsburg Unified 	School 	District 	(1984) 	PERB
Decision 	No. 	318a, 	the 	Board 	stated 	that 	the 	reconsideration
process
. 	. 	. 	is not intended to provide a party
with a 	forum 	in which 	to prove 	that,
subsequent 	to 	the 	issuance 	of 	a 	Board
decision, 	it has 	complied 	in whole or 	in
part with 	the 	Board's Order. 	Such 	a 	claim
is 	properly 	raised 	in a 	compliance hearing,
should one be 	required. 	(Slip Op., 	p. 	6,
fn. 	4.)
Likewise, 	where 	a party wishes 	to demonstrate 	that 	it
voluntarily 	restored 	the 	status 	quo 	ante, 	thereby 	limiting back
pay exposure, 	such 	a 	showing 	is best 	left 	to compliance
proceedings. 	At 	such a hearing, 	evidence 	can be addressed as
to 	whether 	the 	District 	took 	action 	that 	tolls 	the back pay
award, 	and 	the 	actual 	amounts 	of back 	pay 	can be 	calculated by
determining how many minutes 	the 	teachers' 	workday was
increased.
Furthermore, 	a 	request 	for 	reconsideration must meet 	the
strict 	requirements 	of 	PERB Regulation 	32410(a). 	This
regulation 	provides:
. 	. 	. 	The grounds 	for requesting
reconsideration 	are 	limited 	to 	claims 	that
the 	decision 	of 	the 	Board 	itself 	contains
prejudicial 	errors of 	fact, 	or newly
discovered 	evidence 	or 	law which 	was 	not
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previously 	available 	and 	could 	not 	have been
discovered 	with 	the 	exercise 	of 	reasonable
diligence.
Here, 	the 	District's 	claim 	that 	it 	returned 	to 	the 	status
quo 	ante 	fits 	none 	of 	those 	grounds 	set 	forth 	in 	Regulation
32410(a). 	Reconsideration by the 	Board based on 	a 	claim 	that
the 	status 	quo 	ante has been 	restored 	is 	not appropriate, 	but
is 	properly 	left 	to 	the 	compliance procedure where 	the
consequences 	of 	a 	return 	to 	the 	status 	quo 	ante bear 	directly
on 	the 	remedy 	ordered.
2. 	Interest Award
The Board, 	pursuant to section 3541.5(c), 	is empowered to
". 	. 	. 	take 	such affirmative action 	. . . 	as will 	effectuate
the policies 	of 	this 	chapter." 	Previously, 	the Board has held
that 	its 	delay 	in processing a 	case 	is 	"no basis 	upon 	which 	to
deny 	employees 	a 	remedy 	for 	an 	employer's 	unlawful 	conduct."
(Mt. 	San Antonio Community College 	District 	(1983) 	PERB
Decision 	No. 	297. 	See also, 	Corning Union High School 	District
(1984) 	PERB 	Decision No. 	399a; 	Pittsburg Unified School
District 	(1984) 	PERB Decision No. 	318a.) 	These decisions 	rely
on 	and 	are 	consistent 	with 	private 	sector 	case 	law. 	Since
1962, 	the National 	Labor 	Relations 	Board 	(NLRB) 	has 	routinely
attached 	interest 	onto back 	pay awards. 	(See 	Isis 	Plumbing 	&
Heating Co. 	(1962) 	138 NLRB 	97 	[57 LRRM 1122].) 	Federal 	courts
have upheld 	this 	practice. 	In Bagel 	Bakers 	Council 	v. 	NLRB
(1977) 	555 F.2d 304 [95 LRRM 2444, 	2445], 	the Court of Appeal,
in upholding the NLRB, 	stated:
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Interest 	is 	normally granted 	on 	a 	back 	pay
award. 	Assuming 	for 	the moment 	that 	the
board was 	responsible 	for 	the 	delay, 	we 	can
see 	no 	reason 	to 	shift 	its 	cost 	from 	the
employers 	to 	the 	employees harmed by 	the
illegal 	conduct. 	[Citations 	omitted.]
This 	same 	rationale has 	been 	followed by 	California 	courts.
(See M. 	B. 	Zaninovich, 	Inc. 	v. 	Agricultural Labor Relations Bd.
(1981) 	114 Cal.App.3d 665, 	682-683.)
Even 	if 	caused by PERB, 	delay does 	not 	compel 	us 	to 	suspend
imposition of 	interest. 	In 	this 	case 	we 	see 	no 	reason 	to
depart 	from 	established 	precedent 	which 	allocates 	the 	burden 	on
the 	wrongdoing 	employer. 	Employees 	should be 	compensated 	for
the 	lost 	time 	value 	of money owed 	to 	them.
3. 	Change 	in Lunch 	Period
In 	Decision No. 	566, 	the Board stated:
Whether 	and how much 	the 	decrease 	in 	the
student 	lunch 	period 	actually 	increased 	the
teacher 	workday was 	not 	made 	clear 	at 	the
hearing. 	Thus, 	should the parties be unable
to agree 	as 	to 	the 	total 	impact 	this had on
the workday, 	a 	compliance hearing may be 	in
order. 	(Slip Op., 	p. 	20.) 	(Emphasis added.)
The 	District 	asserts 	that 	the 	above 	language 	implies 	that
the 	Association 	failed 	in 	its 	burden 	to 	prove 	the 	60-minute
class 	cycle 	lengthened 	the 	teacher workday. 	We 	disagree. 	The
thrust of our decision 	is 	to the 	contrary. 	Preliminarily, 	the
parties 	do 	not 	dispute 	that 	the 	District 	unilaterally changed
the 	starting 	time, 	thereby causing 	teachers 	to 	report 	ten
minutes 	earlier 	than previously 	required. 	Further, 	the
District 	increased 	each 	class 	period by 	three 	minutes. 	These
two 	changes 	alone 	support 	our 	conclusion 	that 	the 	District
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unilaterally 	increased 	the 	workday.
Less 	clear 	is 	whether 	the 	change 	in 	the 	lunch period and
the 	passing period 	affected 	the 	overall 	teacher 	workday 	and 	by
how much. 	These 	changes 	must be 	calculated 	in 	connection with
the 	increase 	in 	the 	school 	day noted above.
Thus, 	although 	some 	questions 	exist 	as 	to 	the extent of 	any
adverse 	effect 	on 	the workday, 	we 	conclude 	that 	the Association
met 	its 	burden of proving 	there was 	an 	increase 	in 	the
workday. 	We 	leave 	to a 	compliance hearing 	the 	determination 	of
the 	extent 	of 	the 	increase 	in 	the 	workday due 	to changes 	in
starting time, 	class periods, 	passing periods, 	and lunch
periods.
4. 	Precedential 	Effect 	of 	PERB 	Decision 	414
In Modesto 	City 	Schools 	and High 	School 	District 	(1984)
PERB 	Decision No. 	414, 	we held 	that 	the 	Districtwide practice
regarding the 	length of 	the 	lunch period 	varied. 	Therefore, 	a
change 	in 	the 	length 	of 	the 	lunch period 	at 	one 	school 	did 	not
amount 	to an 	unlawful 	unilateral 	change, 	but was 	consistent
with District practice. 	In 	this 	case, 	the District argues 	that
we 	should 	apply 	the 	finding 	and 	reasoning of 	that 	decision. 	We
disagree. 	As 	the 	events 	in 	this 	case preceded those 	in
Decision 	No. 	414 by three years, 	the 	later decision does 	not
affect 	the outcome of this 	case. 	Moreover, 	in the prior
Modesto 	case, 	the 	Board was 	not 	required 	to decide how 	long 	the
District's 	practice 	endured. 	Nor has 	it been 	established 	in
the 	instant 	case 	that 	the 	same 	practice 	existed 	three 	years
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earlier. 	We 	therefore 	cannot 	say what 	the 	Districtwide
practice 	was 	with 	regard 	to 	the 	length 	of 	lunch periods 	for 	the
purposes of 	this 	case. 	Thus, 	the prior decision 	is 	not
instructive 	in 	this 	case.
5. 	Association's 	Request
In 	its 	request, 	the Association 	reasserts 	its previous
argument 	that 	it 	did 	not waive 	its 	right 	to negotiate 	the
school 	calendars. 	We 	deny the Association's 	request 	for
4	reconsideration because 	it is untimely.4 4
Even 	if 	we 	ignored 	the 	Untimeliness 	of 	the Association's
request, 	however, 	we would 	still 	deny 	it because 	the Board has
previously held 	that 	the 	mere 	reassertion 	of 	arguments
considered 	and 	rejected 	by 	the 	Board 	in 	an 	underlying decision
does 	not 	constitute 	the 	kind 	of 	"extraordinary 	circumstances"
that 	justify granting 	reconsideration. 	(See 	State 	of
California 	(Dept, 	of 	Developmental 	Services, 	Napa 	State
Hospital) 	(Matta) 	(1984) 	PERB Decision No. 	378a-S; 	Pittsburg
Unified 	School 	District 	(1984) 	PERB Decision No. 	318a; 	Rio
Hondo Community 	College 	District 	(1983) 	PERB Decision No. 	279a.)
Finally, 	we 	decline 	the Association's 	request 	for
attorney's 	fees 	as 	the 	arguments 	raised by 	the 	District 	are 	not
"without 	arguable 	merit," 	nor were 	the 	arguments 	made 	in bad
faith. 	(See 	King 	City High 	School 	District Association 	et 	al.
(1982) 	PERB Decision No. 	197; 	Chula Vista 	City School 	District
4 The 	request 	was 	not 	made 	within 	the 	20 	days 	required by
Regulation 32410, 	footnote 2, 	supra.
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(1982) 	PERB Decision No. 	256.)
Inasmuch 	as 	the Association's 	request 	is 	based on 	arguments
and 	evidence 	previously 	presented 	and 	considered 	by 	the 	Board
when 	it made 	its 	determination 	in 	the underlying decision, 	no
extraordinary 	circumstances 	are 	shown 	which 	justify
reconsideration 	of 	that 	decision.
ORDER
The 	requests 	for 	reconsideration 	of 	PERB Decision No. 	566
(Case 	Nos. 	S-CE-286 	and 	S-CE-287) 	are hereby DENIED.
By 	the 	BOARD5
Chairperson 	Hesse's 	concurrence 	and 	dissent begins 	on page 	10.
5Member 	Porter 	did 	not participate 	in 	this 	Decision.
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Hesse, 	Chairperson, 	concurring and dissenting: 	I 	agree
with 	the 	majority 	that 	questions 	regarding 	the 	effect 	of 	a
return 	to 	the 	status 	quo ante 	on back pay are best 	left 	to a
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compliance 	proceeding. 	A compliance 	officer 	can 	determine 	if
the 	District did 	return 	to 	the 	status 	quo 	ante, 	and can 	toll
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any back 	pay 	liability as 	of 	the 	date 	of 	the 	return 	to 	the
status 	quo ante. 	I 	also agree 	that 	the Association's 	request
for 	reconsideration 	is 	untimely 	and 	should 	therefore 	be
denied. 	The 	Association's 	request 	for 	attorney 	fees 	and 	for
oral 	argument 	should 	likewise 	be 	denied.
Generally, 	I 	agree 	that 	interest 	should be 	awarded 	until
the 	affected employees 	are 	"made whole." 	But 	where 	this 	type
of 	award does 	not 	effectuate 	the purposes 	of 	the Act, 	the 	Board
should provide 	a 	different 	remedy; 	and where 	an 	interest 	award
causes 	more harm 	than 	good, 	a 	more 	limited 	award would be
proper.
In 	this 	case, 	our 	internal 	records1 show that 	a 	large
percentage of 	the 	interest 	liability 	is 	due 	to 	the 	delay of
this 	Board 	in 	issuing a 	decision. 	This 	case was 	assigned 	to a
panel 	in May 1983, 	but a 	decision did not 	issue 	until 	April
1986. 	Therefore, 	even after allowing a 	reasonable 	time of a
year 	for deliberation, 	at 	least 	two years 	of 	interest 	is 	the
result 	of 	Board 	inaction. 	The majority 	relies 	on 	cases 	in 	the
1PERB 	may 	take 	official 	notice 	of 	its 	records.
(Mendocino Community 	College 	District 	(1980) 	PERB 	Decision 	No.
144; 	Antelope 	Valley Community College 	District 	(1979) 	PERB
Decision No. 	97.)
10
1

private 	sector, 	and 	prior 	PERB 	cases 	which 	adopted private
sector 	rationale, 	for 	finding 	that 	delay 	in 	Board proceedings
is 	insufficient 	reason 	to eliminate 	or 	reduce 	an 	interest
award. 	I 	do not 	find 	the 	rationale 	in 	those 	cases persuasive
or 	applicable 	to 	the public 	sector.
In 	the private 	sector, 	when 	an employer denies 	to an
employee monies 	owing, 	or 	increases 	an 	employee's workday
without 	adequate 	compensation, 	the 	employer has had 	the 	use 	of
money 	that 	is 	not his. 	Imposition 	of 	interest 	insures 	that 	the
employer 	does 	not benefit 	financially 	from 	the 	use 	of 	that
wrongfully-withheld money. 	Assessment 	of 	interest 	is 	also 	fair
because 	the employer can, 	if he chooses, 	recoup his 	losses by
increasing 	production 	or 	decreasing 	expenditures.
This 	justification 	for 	imposition 	of 	interest 	in 	the
private 	sector 	does 	not 	fit 	the public 	sector 	situation. 	A
school 	district 	does 	not have 	the 	"use" 	of 	wrongfully unpaid
monies 	during 	the 	time 	this 	agency takes 	to 	decide 	cases. 	Nor
can 	it 	increase 	"sales" 	in order 	to discharge 	interest
penalties. 	Public 	school 	districts 	receive 	a 	certain 	amount 	of
money each year 	to perform 	their 	duties. 	They adjust 	their
expenses 	within 	that 	framework. 	They 	cannot 	do 	the 	things
private 	employers 	do to 	raise additional 	monies, 	nor 	can 	they
invest 	their 	funds 	in 	anticipation 	of 	large 	interest 	awards.
Thus, 	a hefty 	interest 	charge 	on 	top of 	a 	substantial 	back pay
award could devastate a 	school 	district. 	In 	such a
circumstance, 	no one would win.
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The 	employees 	are 	not 	unfairly penalized by 	the 	limitation
of 	interest 	because 	the 	original 	violation 	did 	not 	result 	in
employees' 	pay being reduced. 	Rather, 	employees were not
compensated 	for 	an 	increase 	in work 	time. 	Although 	the 	total
increase has 	yet 	to be 	determined, 	by my estimation 	it
represents 	only a 	small 	percentage 	of 	the 	total 	minutes 	worked
every day by the employees. 	Thus, 	for each 	individual
employee, 	the 	interest 	awarded by 	the 	majority would 	not
represent 	an 	amount 	likely 	to have 	more 	than 	a 	minimal 	impact
on overall 	earnings. 	But 	for 	the 	District, 	the 	cumulative
effect 	of 	the 	total 	award 	could be 	tremendous.
I 	would 	not 	rule 	that 	interest 	is 	inappropriate here.
Rather, 	it 	should be 	confined 	to the period prior 	to 	the
restoration 	of 	the 	status 	quo ante. 	Such 	a 	limitation will 	not
hurt 	the employees, 	and 	it will 	serve 	to make 	them whole, 	with
reasonable 	interest 	compensation. 	At 	the 	same 	time, 	such 	a
limitation 	will 	acknowledge 	and 	encourage 	the 	District's 	return
to 	the 	status 	quo ante, 	without punishing 	it 	for 	the delay
caused by 	this 	agency's 	inaction.
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